Dying Without a Will in Virginia

Laws of Intestacy Succession in Virginia

Virginia State Capitol, Richmond

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When a Virginia resident dies without having made a Last Will and Testament, the intestacy succession laws found in the Virginia Code will dictate who inherits the deceased person's probate estate. There are various situations that intestacy laws must address.

If you live in Virginia or have a relative living in Virginia, you might be curious about the state laws regarding passing on belongings or assets to loved ones without a will. While everyone should have a will, not everyone does; nor do many people know the process of probate (administering an estate when a will is not present, by a state).

If Survived by Spouse and/or Descendants

If a person is survived by a spouse and descendants, all of whom are descendants of the spouse, the surviving spouse will inherit 100% of the deceased spouse's probate estate.

A common situation is one in which a person with children from a previous marriage is survived by a spouse and their children. In this case, since some of the deceased's children are not descendants of the surviving spouse, the surviving spouse will inherit one-third of the probate estate (the estate being administered) and the descendants will inherit the entire remainder, per stirpes.

A decedent (a person that died) may be survived by a spouse, with no descendants. In this situation, the surviving spouse will inherit 100% of the probate estate. If there are only children, and no spouse, the deceased's children will inherit 100% of the probate estate, per stirpes.

If Not Survived by Spouse and/or Descendants

It is unfortunate, but there are cases where a person passes away and does not have a spouse or children to pass anything on to. If one or both of the person's parents are still alive, they will inherit the deceased person's probate estate in equal shares or the surviving parent will inherit 100% of the probate estate.

If a deceased's parents are no longer alive, but the deceased has surviving siblings, the siblings inherit 100% of the probate estate, per stirpes.

In the regrettable circumstance that a deceased has no spouse, children, parents or siblings alive, the probate estate will pass to grandparents, aunts or uncles, great uncles or aunts, cousins of any degree, or the children, parents, or siblings of a predeceased spouse. 

A very unlikely circumstance is that a deceased person is not survived by any family members as described above. If this is the case, then the entire probate estate will escheat (turn over) to the Commonwealth of Virginia.

There May Not Always Be Something Left

Based on the information presented here, you might believe that you are entitled to an intestate share of your relative's estate. However, this is not always the case. There are circumstances in which estates yield no or negative value to heirs.

In one circumstance, your relative may have only left non-probate property. This type of property is covered in policies and documentation that dictates who will receive it or where it will go. Some examples might be a life insurance policy beneficiary or debts your relative owed at that may exceed the value of the probate estate, making the estate insolvent (not able to pay off debts).

If a deceased leaves debts in excess of the value of the estate, the heirs may be left with debts to pay off.